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Judge delays sentencing over cell phone privacy issue

EASTON, Pa. – A Northampton County judge on Friday delayed sentencing a former Moravian College student for the robbery of a fellow student until she could review a U.S. Supreme Court ruling that could impact his case.

A jury in September convicted Alkiohn Dunkins of robbery, simple assault, conspiracy and receiving stolen property in connection to the February 2017 robbery of a Moravian College student in Hassler Hall. The now 20-year-old was scheduled to be sentenced on Friday.

Defense attorney Michael Diamondstein, who was retained after the trial, asked Judge Paula Roscioli to consider a June ruling by the U.S. Supreme Court that dealt with, what he deemed in court papers, nearly identical Fourth Amendment issues. The Fourth Amendment protects against unreasonable searches and seizures.

Before trial, the defense had asked the court to suppress cell phone information obtained by Moravian College police without a warrant. Specifically, police used cell-site records for any wireless, internet-enabled device connected to the college’s wireless network to track Dunkins’ whereabouts the night of the robbery.

The system’s 1,300 antennae “inadvertently” track a student’s physical location through their connected devices, such as cellphones, as they move about campus, according to court papers. Dunkins argued that the use of the data violated his state and federal rights to privacy.

In denying Dunkins’ motion to suppress the cell phone records, Roscioli ruled before trial that policies in the Moravian College student handbook make it clear that any connections made to the campus wireless network are subject to inspection by the school at any time.

She noted that includes law enforcement and that users have no expectation of privacy regarding that electronic information.

Diamondstein filed a motion earlier this month asking the court to grant Dunkins a new trial based on the U.S. Supreme Court case that dealt with the very issue of the use of cell-site location information.
The case involved a defendant accused in multiple robberies.

Cell-site records placed the defendant’s cell phone near four of the robberies at nearly the exact time of the robberies, according to court papers. Authorities secured court orders for those records, and the Supreme Court found that a request for such records constitutes a search for Fourth Amendment purposes.

Justices ruled there is a right to privacy in terms of a person’s physical movements. The high court found that third parties were able to collect data through a cellphone connection to its network, allowing the unintentional tracking of the cellphone user’s movements. The court wrote in its opinion that “when the government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user,” according to court papers.

Diamondstein argues that the student handbook fails to alert students that “their right to privacy in their physical movements can be or would be eliminated by using the college network.” The defense argues it would be a “wanton miscarriage of justice” to sentence Dunkins following a trial in which evidence that was illegally obtained was not suppressed.

On Friday, Diamondstein argued that signing the student handbook and waiving a right to privacy would allow police to collect information if someone, for instance, downloaded child pornography or made threats using the college’s system. But the waiver is not sufficient for what amounts to geo-tracking a person’s movements, he said.

The waiver does not indicate that the college can essentially use the system to track your movements and draw a dotted line as a student moves from one location on campus to another, Diamondstein said. If the waiver makes that clear, a student can switch off the wi-fi connection on a cell phone, he said.

Assistant District Attorney Richard Pepper, who prosecuted the case, argued the Supreme Court ruling cited by the defense does not apply because it was an extremely narrow application in that particular case.

The data collection used by investigators amounted to a cell tower dump, Pepper argued. Authorities did not seek Dunkins’ information but rather all information captured by the system, he said.

Dunkins made the conscious decision to carry his cell phone while committing the robbery, Pepper said. He could have turned his phone off or left it at home, he said.

“So, he did consent to what counsel said he didn’t knowingly consent to,” Pepper said.

Roscioli delayed sentencing in order to review the U.S. Supreme Court ruling and it potential impact on the Dunkins case.

The robbery victim, a known drug dealer on campus, told police that he was robbed in his dorm room. He told police that two men rushed in wearing ski masks. One pointed a gun at him and stole $1,000.

Another student later told police that Dunkins told him about the robbery.